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tv   Key Capitol Hill Hearings  CSPAN  January 30, 2014 10:00pm-12:01am EST

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reasons i support senator gillibrand and the military justice improvement act for removing those in authority. zero tolerance is not a new phrase. it is not a new policy. at least 32 years. it has not worked. it will not work. do not think that the mmanders deserve another 130,000 victims so that they can prove they can do something that they have not managed to do in the last 34 years. thank you for your time. >> i want to just say it is very important that you came here today and this we were able to hear what happened to you. i appreciate that it couldn't have been easy for you. > thank you very much.
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>> next, miss jenny lee, also from arkansas. >> good evening. it is a pleasure for me to be ere today. because i get a chance to no longer be silent. i knew when i was a little girl taking care of my mom, just after she had broken her back, that i wanted to be a registered nurse. school career going towards that goal of being a registered nurse. senior year in high school,
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our country was attacked verseas. libya bombed a popular g.i. bar hangout in frankfurt, germany. president reagan responded swiftly and with the least amount of casualties possible and taught me that i wanted to e a soldier too. so that i could combine two dreams into one. i could enlist, become a nurse and also serve and make a career out of it.
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those dreams were swiftly taken away from me. my second week in basic training, i had gotten sick from all of the immunizations and my rill sergeant, who was often under the nolves alcohol more than he was sober, said that i had to be isolated because my fellow recruits said that i was keeping them awake with my oughing. in the middle of the night, i head,feel a hand touch my as if feeling for fever. and at first, i thought hey, that is my dad, checking on me, ou know?
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then that hand moved down to my reast. and then it continued down the rest of my body. as i tried to fight him, he took s forearm and placed it over the top of my shoulders, my chest and my throat so i couldn't scream out. he told me if i quit fighting, i wouldn't be hurt. i kept fighting for a while. and i realized he had far more strength than i did. me to was done, he told
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go clean up. and put on other clothes. nd report back to my bunk. he next morning, i had bruises .n my neck, my arms, my chest my he inside of my legs and knees. i remember his threat. he told me if i dared to say nything, that i would end up like the girl in the cycle before us. i would be dead.
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seven weeks later, i thought i as pregnant. that physical et activity makes a woman's enstrual cycle stop. the whole time i had also been suffering with a really bad urinary tract infection that started from that night, but i was scared to do anything. my gut told me to just deal with it. i had called my mom and i had old her about what happened. my mom told me if you don't talk bout it, it didn't happen.
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my best friend, when i called her, she just listened to me cry. but when i thought i was pregnant, i had to find out. so i requested to go to sick call. they treated me for a u.t.i., but they said i wasn't pregnant and explained to me why. the drill sergeant, drunk again, came after me, i
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think aed me from the bottom -- yanked me from the bottom bunk by my collar. he threw me against the wall, a brick wall, destroying my houlder. someone heard the noise, ran upstairs, saw me pinned against the wall and her only reaction -- and walked back down the stairs. i was told that if i even dared that ort either incident,
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it would be their word against mine. and that there would be more unishment to come. the next morning, i didn't know how badly my shoulder had been injured. i tried to do p.t. that morning and my shoulder was completely out of joint with the first pushup. they personally escorted me to sick hall and told me i had and ated my shoulder that's what i was told would be
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y story. , anaged to get out of basic but continued to have problems with the shoulder. had also had bruises on my hips from where he had thrown me to the ground after the drill sergeant showed up. and i thought they were just bruises. my parents reiterated to me that
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wasonly way to survive this to act as if it didn't happen. and not to ever speak of it again. but i didn't want to be that person. because if he did it to the girl in the cycle before me, who else was he going to do it to? because he did it to me. so at one of my orthopedic appointments, i tried to tell the doctor, i did tell the doctor, the real reason behind the shoulder injury.
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he didn't document not one part of the story, but he did refer to social work services for counseling. i was never allowed to go. at that point, i just wanted to get to my next duty station, which was going to be germany. when i got to germany, no one new what had happened to me. working on i was the base post office by myself. and i was looking out the window
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ust daydreaming. it tron walked in and all took were five words and i knew t was him. i picked up everything i could to throw at him. first thing was a tape dispenser. next thing was a stapler. the whole time i was screaming or anyone to come. instead of being the happy -go-lucky person that i had been the first year and a half in
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ermany, i changed. i cried at the drop of a dime. r it could have been a look. finally it got me. -- finally got me to talk about it. told her what happened. she of course did what she thought she needs to do, which -- to take it to the top for first sergeant and to our captain.
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not long after that, i was told that i was going to be medically discharged because of my shoulder. my shoulder kept dislocating, but the injury was more complex because the collarbone itself had also been completely torn out of both sockets. so every time i would try to run, do p.t., pushups, the collarbone would go on my airway and it would crush the airway. they had to go in and remove an nch of it. it was my firing shoulder.
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they said if i couldn't fire a weapon, i couldn't be a soldier. so i thought one more time, i'm going to try to tell what really happened so that something can when the medical review papers started coming in, i filled out the form where i requested to appear in front of and dical review board specifically asked for a woman to be on the board. so that i could tell them what appened to me. within a month, my discharge
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papers were there. telephonic form showed up in my file saying that i agreed not to go and testify in front of the medical review board. they just wanted me out. everything about the military i , riding 12 miles didn't bother me.
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the long nights, cold nights, wet nights, none of that bothered me. because when i came in, i thought i was going to be part of a team. a family. with brothers and sisters at rms that would have my back. and i would have theirs. that i would take a bullet for and they would take a bullet for e. and i believed that all the way through my chain of command. i have spent the last 20 years
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trying to get my disability through the v.a. or ptsd. even though it wasn't as severe had the today, i still nightmares and i lost four marriages because of it. when the shoulder injury got so ad that i could no longer be a it was like rse, eing raped all over again.
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ow both of my dreams are gone. nd i became a shell. -- gentlemen an that were sitting at this table to tell them nt that every blind eye they developed, and every deaf ear as turned, they raped me much as the drill sergeant did hat night.
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isn't enoughsilent anymore. president reagan's words, they counted on me to be passive. hey counted wrong. ou raped me. and it is time for it to change.
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the military has had their time. thank you. >> thank you very much, ms. lee. thank you very much. ppreciated hearing from you. >> some of the things i want you to take into consideration -- just a few statistics. all of you can see that i'm someone's daughter, but just for a moment, think that i'm your son. because there is many men out there being raped and brutalized
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as there are women. but we have spoken more about women throughout this entire process than we have the men. and that needs to be addressed too. there needs to be tougher penalties, mandatory prisoning sentencing. hen they do get out, they need to be required to be on sexual assault prevention registries. and maybe, just maybe, last year, two police officers uldn't have lost their lives because a chief warrant officer
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either a choice to resign his commission after raping a fellow officer, an enlistee, or face court-martial. and he did it again in the civilian world. d now there are two officers . ad wives without husbands and children without their father. ecause we gave him a choice.
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neither way was what happened to me or how that happened is right. and that's why the chain of command has got to be taken out of it. as sexual assault nurse examiner volunteer, that needs to be a part of the process for every victim, male and female. they know the protocol. commanders don't know the protocols. they don't know how to take tears in the ee
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comb for evidence or to look under fingernails for that can prove a case. commanders aren't trained. they are trained to get us ready , troop ready, to go to war. ot to go to court. >> thank you again, ms. lee, very much.
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>> we had a request from a mr. kim collins. i don't know if he was able to make it today. >> mr. collins? >> and he did say he might not be able to make it and it doesn't look like he did. our final public comment is from arlington -- from miss sarah zach from arlington. >> my name is sarah zach. thank you for the opportunity to address the systems response panel today. i'm a retired navy commander and a graduate student on leave of absence. i'm not a stake holder and i am not looking for employment. i am not a victim of sexual assault and i am not an expert in any of the professional fields currently addressing this
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problem. i am an independent, self-supported concerned citizen who has come to the d.c. area to learn about the military sexual assault problem and what is being done to fix it. first, i would like to offer my thanks to the panel for all the work that has been done to find a solution to this problem. i can't imagine all the time and energy that has gone into it from your part. i certainly have an idea of how it has been for the witnesses. given that the purpose of this spaniel to make recommendations on how to improve the current system, i join with others who are eagerly anticipating the public release of your investigation. personally, i hope your report will include recommendations for two or three alternatives to the current system of investigation and prosecution and i hope that e of them will give senators
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llibrand and mccaskill collaboration on the bill and be acceptable by the department of defense and get strong support in congress. i have a perspective on this issue that i believe is unique. so in closing, i request your permission to offer a couple of personal thoughts. i agree with those who believe the commander of the accused should remain part of the prosecution of an alleged sexual assault offender. i agree that they may be too biased to fairly adjudicate cases of sexual assault. with due respects to sexual assault victims and senator gillibrand, we moving the commander is not the only way to eliminate the perceived bias. as with many things in the military, training may be part of the answer and i know that is
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being addressed by the department of defense sexual assault prevention and reporting office. unfortunately, the statistics that are used to support military sexual assault prevention and reporting training pose a credibility problem. the consistency with which the statistics are being kept throughout the department of defense is an issue of concern. a lack of understanding about the source and collection of the data also contributes to the general disbelief that military sexual problem is a problem at all. so although the d.o.d. annual report on sexual assault for fiscal year 2012 presents data that you have in front of you, it is a pie chart that indicates the percentages of rape, sexual assault, aggravated sexual contract, abusive sexual
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intact, nonconsensual sodomy, would propose when that chart is presented in front of commanders, they will see the pie chart, but inside of seeing rape they will see the victim asked for it. instead of seeing sexual assault, they will read too much alcohol involved. instead of reading aggravated sexual contact, they will think oh, my god, another another he said, she said problem. instead of abusive sexual contact, they are going to be thinking the victim is lying. and as far as nonconsensual sodomy is concerned, they will probably think my sailor, airman, soldier, marine, is not a sex offender and for the other category it may be something as trivial as the accused was just joking around. after three decades of empty
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threats of zero tolerance, it seems to have thanken hours in the congress -- taken hours in the congressional hot seat for the leaders of the military service to finally get that there is a sexual assault problem in the military. i hope they are able to overcome challenges such as doubt to have statistics and get the rest of the troops onboard with the program in a timely manner. again, thank you for the privilege of speaking with you today. >> thank you very much, ms. zach. that completes the public comments, ma'am. did you want to take a five-minute break? >> we're going to try to reconfigure the seating up here. so we're going to take a five-minute break and then come back and continue the process. >> based on all information considered to this point, the
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strong majority of subcommittee members agrees the evidence does not support a conclusion that removing authority from senior commanders will reduce the incident of sexual assault or increase reporting of sexual assault in the armed forces. nor does the evidence indicate it will improve the quality of investigations and prosecutions or increase the conviction rate in these cases. further, the evidence does not support a conclusion that removing such authority will increase confidence among victims of sexual assault about the fairness turnover military justice system. will reduce their concerns about possible reprisal for making reports of sexual assault. as a result, the subcommittee's assessment at this time is that the authority vested in senior ommanders to convene
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court-martial for sexual assault offenses should not be changed. now in reaching this conclusion, the subcommittee has made the following findings. first, criticism of the military justice system often confuses the term commander with the person authorized to convene court-martial for serious violation s of the uniform code of military justice. these are not the same things. second, under current law and practice, the authority to refer a sexual assault allegation for trial by court-martial is reserved to a level of commander who'll normally be removed from any personal knowledge of the accused or victim. if the convening authority has an interest in a particular case other than an official interest, the convening authority is required to recuse merry christmas or herself --
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>> recuse himself or herself. when they convene court-martial for sexual assault offenses allege allegedly committed by members of their command. as with leaders of all organizations, commanders must often make decisions that may negatively impact members of the organization when these decisions are in the best interest of the organization. fourth, there is no evidence at this time supporting a conclusion that removing senior commanders as convening authority will reduce the incidents of sexual assault or increase sexual assault reporting. fifth, sexual assault victims currently have numerous channels outside the chain of command to report incidents of sexual assault and they are not required to report to anyone in their organization or any member of their chain of command.
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these alternative reporting channels which exist today are well and broadly public lissized throughout the military. military personnel in the united states may always call civilian authorities r, healthcare professionals or other civilian agencies to report a sexual assault. sixth, under current law and practice, sexual assault allegations must be referred to and investigated by military criminal investigative organizations that are independent of the chain of command. no commander or convening authority may refuse to forward an allegation or impede an investigation. any attempt to do so would constitute a dereliction of duty or obstruction of justice which would be a violation of the uniform code of military justice. seventh, under current law and practice, the authority to
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resolve sexual assault allegations is limited to senior commanders who must receive advice from judge advocates before determining appropriate resolution. 8, none of the military justice systems employed by our allies was changed or set up to deal with the problem of sexual assault, and the evidence does not indicate that the removal of the commander from the decision making process in non-u.s. military justice systems has affected the reporting of sexaults. in fact, despite fundamental changes to their military justice systems, including eliminating the role of the convening authority and placing prosecution decisions with independent military or sometimes civilian entities, our allies still face many of the same issues in preventing and responding to sexual assaults as the united states military. ninth, it is not clear what
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impact removing convening authorities from senior command commanders would have on the military justice process or what consequences would result to organizational discipline or operational capability and effectiveness. 10, congress has re-enacted significant reforms addressing sexual assault in the military and that the department of defense has implemented numerous changes to policies and programs to improve oversight and response. these reforms and changes have not yet been fully evaluated to assess their impact on sexual assault reporting or prosecution. d lastly, prosecution of sexual misconduct contributes to the overall effort to address this problem. commanders must play a central role in preventing sexual
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assault by establishing command climate, making sure subordinates are trained in and embrace their legal and moral obizations and emphasizing their role of accountability at all evels of the organization. the subcommittee heard many perspectives and reviewed considerable information as i mentioned earlier, about the role, the commander's role in the military justice system as the prosecute tomorrow authority for sexual assault allegations. proponents vocketting for system change offered different opinions about what consequences would result from such change. the subcommittee did not find, however, clear evidence of what
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consequences, positive or negative, would result from substantially changing ucmj's con veeng authority framework. accordingly, the subcommittee believes caution is warranted and systemic change may not be advisable if recent and current efforts produce meaningful improvements. the suggestion by some that vesting convening decisions for court-martial with prosecutors instead of senior commanders would better address the problem of sexual assault is problematic. a presenter at a september panel public meeting observed that it assumes too much that somehow a prosecutor is always going to be better at this than commanders. civilian jurisdictions face underreporting challenges that are similar to the military and it is not clear that the criminal justice response in civilian jurisdictions where
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prosecute oral decisions are supervised by appointed lawyers is more effective. a recent white house report notes, "across all demographics, rapists and sex offenders are too often not made to pay for their crimes and remain free to assault again." arrest rates are low and cases are still being dropped. many times because law enforcement officers and prosecutors are not fully trained on the nature of these crimes or how best to investigate them and prosecute them. the white house report also highlighted how that low prosecution rates in the civilian sector and prosecution decisions that contradicted the desires of sexual assault survives provide -- often
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prosecutors base charging decisions on whether physical evidence connecting the suspect to the crime was present, if the suspect had a prior criminal record and if there were no questions about the survivor's character or behavior. other factors outside the intrinsic merits of the case such as budget, staffing or time constraints also may influence charging decisions for prosecutors. in short, arguments about the advantage of prosecutors over commanders with respect to convening authority are not consistent with information from the civilian sector. congress, as i previously mentioned, has recently enacted significant reforms to address sexual assault in the military and the department of defense has implemented numerous changes to both policies and programs to
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improve oversight and response. -- -- thesedicators reforms and changes have not been fully evaluated to assess their impact on sexual assault reporting or prosecution. respective of changes in senior commander authority in the military justice system, commanders and leaders at all levels must continue their focused efforts to prevent incidents of sexual assault and respond appropriately to incidents when they occur. military commanders are essential to creating and enforcing appropriate command climates and senior leaders are responsible for ensuring all commanders effectively accomplish this fundamental responsibility. i would only like to add that as i mentioned, and i'll say it
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again, this is our initial assessment. and with respect to the role of the commander committee, there are a number of other issues that we are tasked with looking into and indeed, i have -- i am certain that we will hear more information with respect to the retaining the commander as the convening authority. i would like to now ask professor hillman to speak, as she has a separate statement for the consideration of the panel. >> thank you, your honor. set forth my perspective on the issue and i'll read the statement that is before you that is attached behind the report of the subcommittee. first, i'll note that i wrote it before we heard testimony today and i appreciate the testimony of everybody today and that the
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subcommittee overall will -- i will integrate that into the tatement that i wrote. second, i want to thank our staff. i could not have reached a conclusion or written it without -- i'm ort of the staff grateful for that. i would also like to mention that the subcommittee had not yet reported to us and i look -- ard to their report taos reports too. i have great respect for the survivors of military sexual assault, for the leaders of armed forces and for my colleagues on this panel. we share a goal of improving the military's response to rape and sexual assault. i understand the recommendations
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to retain discretion in manned stems from their commitment to and sexual assault preserve the military, legal and command structure that works. i don't share their opinion that this particular part of the military legal and command structure works for this particular problem and that is why i reached a different conclusion from considering the same evidence. i wrote separately to explain why i stand apart from my subcommittee colleagues on the issue of whether con veeng authorities should we taken many respected criminal military justice systems rely. trained, experienced prosecutors. for decades, military sexual assault scandals have been a regular source of national --
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repeatedly and convincingly before our panel and subcommittee to get to the problem. not to wait until the next incident to respond, but instead, make immediate changes to break the cycle of scandal, apology, response and recurrence. they and many other witnesses asserted that the only way to prevent military sexual assault to attend to the base factors, social, demographic, environmental that allowed it to occur. we heard no evidence that the military justice system is any worse than civilian jurisdictions at responding to rape and sexual assault. we did, however, see proof that rape and sexual assault continues to occur at too high a frequent si in the armed forces despite elements of military
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service that should hurt their prevalence. this includes honor and sacrifice. the higher ethical standards that service members must embrace and the military's ability to -- from among those eligible to serve. rape and sexual assault pose dizz ticketive challenges in the u.s. -- distinctive challenges in the u.s. military. we entrust our military with the legitimate use of force to, support and defend our country and our constitution against all enemies. drawing on a history of war and military successes in which sexual violence has unfortunately been common place. commanders must overcome this by lead agricultural shift towards greater respect for gender equality and legitimate evidence
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for sexual expression away from he norm. if commanders remain focused on implementing this change, they will improve the military's ability to respond. survivors and their families and communities will be able to stellar military records and they will not be protected from legitimate prosecution. all of the members will know desecrate des that women and gay men will not be tolerated. because they create conditions in which sexual assault is more likely. although commanders must lead the way, they are neither essential nor well-suited for
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their current role in criminal prosecution. mandatory and military justice has already been reduced significantly over time. it will be further limited to changes. yet they continue to require convening authorities exercise rosecute scregs. -- discretion. a specific factual context warrants -- as in different ways. or example, speaking out assertively, underlining the legitimacy of any later court-martial. heightened detentions now directed towards military sexual assaults. convening authorities under pressure demonstrate high rates of conviction. the prosecution will order
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court-martial to go forward regardless of the strength of he evidence. commanders should zero in on the changes of culture for sustainable improvement on sexual assault prevention and response. the decision to prosecute is among the heaviest burdens. the ethics of the prosecutor are among the most powerful in the profession. whether there is evidence to support a criminal prosecution -- senior judge advocates licensed by the same authority as licensed civilian authorities -- both civilians and military authorities are every bit as capable of exercising that discretion as their civilian counterparts. adopt legal reforms to replace
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con veeng authoritys with experienced and trained prosecutors and voice concerns about the deterioration of command. no country with independent prosecutors has reported any such dire consequences. i see no reason to defer to predictions about the impact of this case over the pleas of survivors of sexual assaults, ny of whom consider an independent prosecute orial authority. there are no fewer safeguards of a partial and inlt tribunal with whom they serve. the united kingdom, canada and most other countries have already ended command controlled court-martial to protect the rights of accused service members. that goal is consistent with the
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procedural barrier that both victims and perpetrators of rape and sexual assault deserve from the u.s. military. our panels and subcommittees have heard again and again that the sexual assault problems in our military has given people reason to pauds when young people turn to them about advice of whether they should join the armed services. this is the real threat to u.s. military assessiveness. an impartial and independent military justice system that operates beyond the grasp of command control would help restore faith that it help remains a viable and honorable choice for all. thank you. >> thank you. at this point, are there any comments before we begin actual deliberations, with respect to the contents of the report or the findings?
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majority of the just to ee and by -- reflect that we heard from both male and female surviving sexual assault victims and that we heard from our allied brethren of other military forcesarded in finding number eight on the initial assessment. not in terms of who we look for and who we considered. >> thank you. any other comments with respect to the substance turnover report? all right. -- of the report? all right. and i -- i just begin we can go finding by finding as in reach the ultimate conclusions which we can then discuss.
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the first one is the criticism of military justice system often confuses the term commander with the person authorized to convene court-martial for serious violations of the ucmj. these are not the same things. i would just like to throw out to fact that when i first got on this panel, i didn't know what a convening authority was. how the ng exactly system works within the military, how the justice system works, has made a big difference. the con veeng authority, and i think this is a later finding, is almost always not the direct commander of either the accused or the accuser. and i think there is a erception out there that the
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victim of sexual assault ends up having her case determined by her direct commander or his direct commander. and i think that it is important to make that distinction. i guess i should back up and say this is also a response systems panel that is charged with looking for positive responses that will be effective to reducing sexual assault in the military. and i have not been per swated that the removal of a commander as the -- persuaded that the going of a commander is to have a positive impact. there is no evidence that reporting is going to increase. there is no evidence that prosecutions will be better handled. that investigations, even before prosecutions will be better handled.
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which, and i should say that there is a lot of evidence with reforms and also just the training that has been going on for several years, investigations and prosecutions, re being handled in a better fashion than they were with the military reaching out to the best practices of the civilian stems and so i'm not denigrating those investigations and prosecutions. i'm simply saying there is no evidence that removing the convening authority is going to improve any of those parts of the system as they exist now. if i were persuaded that removing the convening authority would encourage victims to
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report, then this would be a different story. i'm not persuaded of that. if you think back on most of the evidence that we have heard, both from victims who have come in to tell us what happened to them, and others, the complaints are about not just commanders, of course, but sexual assaults by many members of the military, complaints about ostracism by peers, complaints about lack of services. complaints about not being listened to or understood. those are all legit mat complaints. they all speak to the culture of the military and the failure to provide the services that are necessary or the quality of services that are necessary. in my mind, they do not have anything to do with a con veeng
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authority, who makes the decision on whether or not to prosecute. i think that when you have a problem, as we do, you look at it, you try figure out what the elements of it are, you look for causes. and then you look for how to cure it. i just don't see a result coming out of removing the convening authority that is going to make a difference, but what i do say will make a difference, is they welcome the commanders and leadership of the commanders and i agree with a lot of statements today, they are under a lot of pressure to get it right, if you want to call it that, this time, that is going to change culture and i just don't see the efficacy of removing the commander as convening authority. i have spoken for a long time. maybe others would like to
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comment. >> could i add something? i think one of the other things big we have seen is a divide in understanding the way the system works between those who are young in age, maybe although -- also young in times , and although i know we are discussing the role of the commander, in our larger capacity as a panel i think that is where our future discussions on training and victim services and education so that individuals know where to go and where to turn when something more of an much who at an as you said,
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high level far removed on the incident makes a decision. respond? i agree that there is no proof of what differences would make. there is no comparable jurisdiction to the u.s. military. foreign military jurisdictions are not directly comparable. civilian jurisdictions which are all over the place in size and demographics and complexity of that shipall things responses, they are all over the place. we can't look to a system and say, this is one where we can understand what happens. i just don't see proof of the negative affects of it either. that goes to this first point about the commander and the convening authority. i don't think the soldier on the authority -- on the ground knows who the convening authority is.
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if the soldier on the ground doesn't know, then what difference would it make to move it to an independent military prosecutor who is potentially removed? if we don't already have that -- and that ised why the service number would trust that it will be handled appropriately because that commander is someone who has the trust of that servicemember -- that is not the person making the decision. why would it harm their confidence in the system? thinkgree that i don't many or most soldiers do know what or who the convening authority is. means that that also making that change actually has little value in the day-to-day whotions of our soldiers
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may be potential a sexual assault victims. >> we have heard so much testimony from commanders about how integral they view the uniform code, their authority, to be to their ability to maintain good order and discipline in the command. if i take what professor hillman just said -- while we change it, it is not going to impact the soldiers that much because it is so far removed -- i don't think you make a change that large without a really good reason to make it. from my perspective, we don't have the evidence to show that making the change will have the impact.
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that thisso concerned change won't have an impact. it will be made but if it is made won't have an impact. , when it would have been an expected -- and effective response, but i also worry about the reaction of sexual assault victims then. there is a perception that this change is going to make everything all right. i think somebody today said it was the last thing we need. i don't view it that way. i think if you're going to make a change that is going to be a large systemic change in the way the uniform code of military justice works and how the command system works, the convening authority system works, you have to have some confidence that there is going to be a positive result in
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responding to sexual assaults. that is why i don't believe that we are necessarily going to see that. i have no proof of it. see wherei don't switching out a commander who is advised by a judge advocate, a general and his staff, is going to come out with any different, ass informed decisions than jagsrent body of ajgs -- who will be somewhere else. i don't think the victims are going to know they are going to see military lawyers. if they see them making these convening decisions. i don't know how different they are going to look from the decisions they are getting now. my concern is -- i cannot say as i sit here that i think there will be incredibly negative
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results to the command if this convening authority is taken away. i don't know and that is something that we are continuing to look at. we don't have any clear evidence of what the impact would be one way or the other. what i also don't have any proof of is that this is going to make a difference in terms of how sexual assaults are dealt with. how they are dealt with by investigators or prosecutors. that need toesults be achieved here is more reporting, better investigating, better services, medical, mental health, all of those. better prosecution and , and i think those are the kinds of results that are going to make a difference
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in victims' confidence, not the authoritya convening commandant from the where the event occurred and the abuse. madam chair, i find myself in a kind of unusual position here. heard thei have andimony of the survivors it is very powerful and very disturbing as an american and as a woman. obviously i think everybody in this committee wants to do whatever we can to try to make a difference so that this kind of experience doesn't happen to anybody else. deal of myt a good professional life involved in fighting sexual assault as a
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member of congress, as a so if thettorney, and evidence were before me that commander as convening authority and putting it in the hands of prosecutorial bureaucracy would make the difference in conviction, the quality of prosecution, the willingness to report, the willingness to cooperate, i -- we can't have the present system. that we haven't seen any evidence of that. as the chair pointed out and professor hillman pointed out, this is such an abstract issue, the convening authority. nobody even knows what it is. very few people. i came also to this panel, i had no idea what the convening authority was. i had no idea how the military
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justice is to work. i am here as somebody who started out with a view that senator gillibrand is a very bright and intelligent and committed person for whom i have great amount of respect. i thought her proposal sounded right. i have changed my mind. because i was just listening to what we heard. i started out that way, thinking , why not change it? now i am saying, why change it? i do think that some of what we have heard here gives me pause in terms of what would happen to the present system -- i do believe that when a commander makes a decision, the convening authority which is military personnel, says that this conduct warrants referral for prosecution, that makes a statement to the whole military that this conduct is
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unacceptable. that doesn't mean this person did it or that it actually happened but that this conduct is not tolerated. i think that kind of statement is really important. if we junk this idea of the commander, high up commander, as the convening authority, meaning having the decision about whether to prosecute and what charges to bring, who are we leaving it up to? it is like jumping from the frying pan into the fire. what are we jumping from and what are we jumping to? ."am worried about the "to out is ane picking alternative. it sounds wonderful. let's turn this over to train prosecutors. i can tell you right now, i was district attorney in brooklyn -- there is a major investigation about "train prosecutors" owing
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on right now. in that county. the question is whether train prosecutors follow the law, the regard toon with requirements to turn over evidence to defendants. prosecutors.ined there are other issues with regard to trained prosecutors. when i became district attorney, i care a lot about the prosecution of sexual offenses, and i made those changes in priority. theuldn't say that prosecution of sexual offenses but the cap priority when i came there. if the kids were closed, they might decide not to bring it. i made a change in that because some commanders or convening authorities might say, it is more important to send a the facts warranted and the law warrants it to try
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to achieve conviction. just turning it over to a prosecutor doesn't mean you're going to get the result you are looking for. a prosecutor -- what this provision would do would take all felony cases, burglaries, and other kinds of similar -- murder, and take them to this prosecutorial authority, whatever it is. who is going to decide in this prosecutorial authority that sex crimes are a priority? maybe they will think that burglary is a priority or maybe they will think that auto theft at a felony level is a priority. a b-day will think that regular assault -- maybe they will think regular assault is a priority. who is going to be setting those priorities? we don't know. here we have a command structure where we know who is owing to be
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held accountable. we know the person who has made the charging decision. when it is turned over to a ,aceless nameless organization who is making the charging decision? whom do i complain to? whom do i hold accountable? these are very serious questions. while it sounds very good to turn over to trained and experienced prosecutors, i have been there. i had an office of 400 trained prosecutors and i would not say that without a leader setting the priorities and setting the charging direction, that turning it over would produce a result that anyone of us would've supported. each decision might be fine on its own that i have this big caseload and i am worried about my promotion so i am not going to take the stuff he said she said. if i lose that, that is it america for may. don't think that prosecutors demeritve -- that is a
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for me. don't think that prosecutors won't have this. there also human beings. before we jump from what i don't consider to be a frying pan -- i don't want to jump into a fire. i need to know where we are going if we are going to make this change and we don't have that clear. i think also that if we don't have the evidence, then we need to have to make the change at all, i just also want to point ,ut that that the decision now because of the focused attention on the problem, the decision by the convening authority has been the judgew so that if advocate, the legal advisor and the convening authority don't agree on what should be done, then the whole matter automatically goes up.
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commandercision -- no is going to have a final decision to say no. unless that is reviewed. that is pretty serious. that means that that decision to say no is going to be really carefully scrutinized. that is what i think is one of the problems here. membersaised with the of the military. it is the fear that if you leave this with any commanders, somehow they will try to push this under the rug. deciding to prosecute or interfering with investigations. they can't interfere with investigations but they can't push this under the rug either. to beecision is going reviewed on a higher level. how this works in practice is something we have to see. these are new changes. it seems to me that the changes that have been made will protect the concern that the commander,
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the convening authority is making a serious judgment. decision is made with sincerity on a basis of the evidence and in an honest and honorable, straightforward way. if it is not, it is going to be reviewed and that is going to be reviewed. i think the changes that have been made should address the issue of trust and i think those people who want to see the system changed on to take a really, really, really hard look at what the alternative is. that has not been spelled out. ands very fuzzy, very vague very problematic and troublesome to me, having been in that very hot seat of a prosecutor where we had to prosecute these cases. leadership and without the drive to make those changes, who knows what kind of bureaucratic response there will be? bureaucratic response to the
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issue of sexual assault by trained professional prosecutors that could happen and that is a danger here. that hasn't been addressed by those people who advocate a change. thank you. >> i am one of the subcommittee theers who is supportive of majority, if you will, of opinion that has been reached. segue fromt to congresswoman holtzman's comments about trained professional prosecutors, i have been a professional prosecutor in the military. i have supervised that. there are many things that i don't know. there are probably few people who have more insight into this dynamic than i do. in terms of the relationship of the prosecutor with decision makers in the military, i would submit that number one, we have
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much evidence that decisions will not change at all. overwhelming evidence that in a statistically significant way, decisions one change at all. the decisions are actually better as a result of having commanders involved. myself and here having been down this road, i have learned from commanders who i have argued good if -- who i have argued with. the decision-making process that comes out of that interaction produces a stronger, not a weaker decision. one of our witnesses this morning told part of a story that he told in its entirety at an earlier panel. mikael --gressman mchale talked about how when he was on reserve duty, he was asked by a commander to do something he viewed to be inappropriate.
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he was asked to rush an investigation. hurdle mchale was outraged by that. that is what he described this morning. in a previous session, he told the rest of the story. he pushed back on the commander and he argued with the commander and he persuaded the commander to do the right thing. that goes on all the time. this that weof haven't commented much on, i think it is pretty compelling for people, we have advocacy for a system where military lawyers are essentially put in charge of prosecution. it,ou stop to think about your natural conclusion would be to think that military lawyers would support that kind of aggrandizement of their authority and importance in their role of the system. it ought to say something that to a person, military lawyers do not support that increase in their authority.
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i was judge advocate general of the united states navy for three years. i think it would be a mistake to increase the authority of military lawyers in that way. it is not a gender thing. female judge advocates feel the same way as male judge advocates do. why is that? , and awe see it this way way that is so curious to civilians and outsiders who look at the system that exists for the rest of society, that seems to work well enough? i do think studies that are coming out, to a certain degree give light to help well it really does work. why do we see it that way? when we have served, we have an understanding that at base fundamental to this is the issue of trust in the commander and the role that that plays in military society. it is not the decision to give somebody an appendectomy or set a broken arm. it is as general brady talk
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about, fundamentally about behavior and the trust we place and people to make decisions and put people in harm's way, to go to their death, to die and to say now at this juncture -- to knowledge the obvious, we have a long way to go. to remove commanders from this now, i think sends a signal of distrust. frankly, i think that it is wrong to say that the military -- it may not be wrong to say but i think it is oversimplistic to say that the military has had 30 some years to fix this. this dynamic is changing. it is a moving target and a morphing target. we have to continue to keep our eye on the ball to get there. commanders have played a central role incentral judicial the solution of the drug problem in the military. they have played a central quasijudicial role in the issue of race as a problem in the
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military. i think the decision to keep the convening authority involved in this is the right one for those reasons. madam chairman, two points. one is going to be exactly what holtzman said. would it change anything if we did remove the convening authority keys? i still come back to the evidence and the legal advisor and a commander considering the same information, i don't see , that that isn going to change any of those results. i don't see that statistical difference. even if i assume that maybe it would come a changes the perception of the victims or the people involved, that is critically important as well. the concern i have is to take that to the next step. up a centralized area
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of perhaps prosecutorial bureaucracy. you're talking about felony cases, not just sexual assault cases. if you have got a team that is supposed to just prosecute these cases, that case that is now in a queue where it might be the most important case at an individual command where they are giving a priority, now it is going to fall into a queue with other cases. it becomes a number. if i try to think about the impact on the victim still in the field, on the command trying to maintain discipline with no input or authority, the victim may see extra delays. i don't see how that helps. the command may have an issue that they can't address and you have somebody who stands accused of an offense whether right or wrong, that person is now having this hung over their heads. there is no evidence to that regard but potentially longer
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than they might otherwise have. heart of me says -- part of me says, we didn't get and the evidence that shows it would make a difference in terms of the decision. we also have no evidence that those potential delays as being , that thateaucracy is not going to cause more harm than it helps. the second point i would make is, in terms of recognizing. the people who read this report will put together a final report to the panel at the end. it is not going to be just read by people who have a military background. watched the difference between a convening authority and the commander. this talks about the criticism of the justice system confusing the term commander with the person authorized to convene a court-martial. that is not the same. yes it can be. i would recommend we carol by that -- clarify that.
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or is command authority and convening authority and it can be the same person. a commander can have it convening authority and be the same person. command authority and convening authority are not the same thing. ofcan be one person has both those authorities. i request we clarify that. >> thank you. >> mr. bryant? >> first of all, i want to say how much i appreciate those who have been on the subcommittee. you are all very experienced people with a great deal of wisdom and good judgment. you have worked hard and hurt a lot of information. privilegedd and been to hear a lot of information that we have all heard. understand how if we removed the convening authority from military command, that
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somehow this has a tremendous affect on morale, shows the troops we don't trust these men and women, we talked about surveys -- it would be interesting if we could have a survey of e-5 and above. we will start with e-4. jag officers were making prosecutorial decisions come would that somehow lessen your respect for your commander and your willingness to obey his or her reverse? the answer would be a resounding no. it is not going to affect anything because the ultimate thing we have to remember is our military, they are war fighters. that is what they do. that is what we want them to do. that is what we want to continue to empower them to do. this idea that somehow the perception of a commander is going to be lessened if he is
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not the one making this hopefully very small part of their overall duties -- who is going to face the course marshal and who is not? i haven't seen anything to the consensus that that would be a problem. i haven't heard that as much lately. thing that we all need , withp in mind is injustice, it is perception that counts a lot. jurisdiction, congressman -- i just went blank on your name. i am sorry. in your jurisdiction, when you were district attorney in brooklyn, if the perception was that just as wasn't being done, then justice wasn't being done in the mind of the public.
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that is part of the issue here. we cannot deny that there is a perception, right or wrong, a substantial perception that if we place this authority in someone other than the commander who has got all these men and women under command, that fairer and better could happen. your point i think is pretty easily answered. the admirals, the secretary of the army and navy, they're going to decide whether or not this is going to be a priority. jag officers who are now tasked to determine what priorities are. there is an awful lot of criminal experience at this
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table, people who have been involved in actual prosecutions and some defense work. , in also needs to be said criminal law, everything is fact driven. you don't have good facts, you don't have a good case. i don't care whether it is mass murder, terrorism, rape or simple assault. if you don't have good facts, you don't have a good case. for us to say that we have no -- i don't even know that this is essential to this particular issue of removing command -- convening authority, to say we have no and then -- evidence that the conviction rate would go up or down, that to me that is a side issue from whether or not we can say that trained professional prosecutors are making these decisions about whether or not a case is one of them.
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it disturbs me a great deal when i read and hear evidence and testimony which i will relate in just a minute, and when i read proposals that indicate, commanders would go ahead suggestion of their jag officers. one of the examples i am leading the document that refers to the prosecution at the naval academy where the convening authority when i had despite the prosecutor's advice. looking back in hindsight, we know that probably they should have followed the prosecutor's advice. as opposed to the commander ignoring that advice. again, criminal cases are driven by facts.
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in my mind, the people who can best assess that are those who do it for a living. that is the prosecutors. i know it -- i am going to bring -- let me finish with this. i don't remember what month it was, it was a full panel meeting. somebody on the end said they had a case that they were quite proud of. they had a case of sexual "knew wehich they couldn't win, but i had him court-martialed to teach him a lesson." that is just wrong. that is not justice. it makes the system start to come apart and fray at the edges. when you start throwing bad cases into the courtroom, whether civilian or military, just to teach somebody a lesson -- first of all it is an abuse of the process.
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second, it doesn't teach that defendant anything. what it taught that defendant was, even court-martialed, i can get away with this. that person did. me as well as the language we have received indicating that victims in these cases -- i am taking this out of a particular paragraph -- the victims got their day in court because a commander not a lawyer had to move the case forward. if we create a system in which prosecutors have the only say, we will see fewer cases go to court martial. what does it mean to say that? that commanders are going to have knee-jerk reactions -- yes? that is one of them. we have have her before us. i agree with congresswoman holtzman that she is a
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dedicated, wise person who has studied this. >> [indiscernible] you are quoting me even though i wasn't saying that. you were talking about senator gillibrand at the time. i have a little trouble with last names. let me check here, bryant, ok. there are some other things that i want to say and address in particular. when we say that commanders have to have that authority, the example that i have used early on was, in the paramilitary organizations of our sheriffs and police departments, some who have thousands of employees, many of whom are committing crimes from time to time, we do not say, you are the commander, you decide whether or not this officer will be prosecuted.
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that just doesn't happen. it goes to the prosecutor's office. i have never heard a key for police or sheriff say -- chief of police or sheriff say my men and women don't respect me anymore. what puts the fox in the hen house sometimes is the perception that things are going like they should go. like people expect them to go. the criticism in the civilian -- the policemes department investigating itself, no wonder they cleared this officer. that is the perception rightly or wrongly that is going on now. again, just to conclude, i haven't seen or heard anything
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that convinces me that if we put this authority somewhere else, we have somehow significantly damaged or even slightly damaged the war fighting capability of our men and women in uniform because their commander no longer decides who is going to get court-martialed for a felony and who is not. >> i wanted to address mr. bryant's comments directly. to dealwe are all here with the facts around getting rid of sexual assault in the military, not the perception of it. thate facts do not show moving the commanders authority is going to do anything, then i think it is our job to eliminate those facts to the public and facts toluminate those
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the public and say, the evidence just doesn't hold up. , cases areid was solved with facts. i think problems are solved with facts. i still think it is an open question. if more facts are brought before this committee at some point that say, we get rid of the commander and we are going to be able to deal better with the issue of sexual assault, and show us the actual facts, i think we can take that into consideration and make changes. we haven't seen it. that is my issue. -- i worked for the national center of victims of crime, we want to stop crime, not the perception of crime. that just placate us. if we are not getting to the root of the problem -- i am also fearful that, ok, we take the commander out, all of a sudden
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our attention shifts. is this change going to work? how many resources do we have to throw at it? it is something we don't know is going to work. we need those resources for things that are going to work. i think that is part of what this committee is trying to do. figure out what is going to stop sexual assault in the military. -- congresswoman holtzman, i went into this thinking it makes sense. i was a former prosecutor. i like the independence of the prosecutor. when you hear at first blush, you go, yeah, i want to go with that. when you hear the facts like you would in a case, it just doesn't hold up. if there is evidence out there, i would like to see it. that said, i also think that many of the changes that have taken place in the last couple of years are because we are
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arguing about the authority of a commander. if that wasn't at risk, many of these changes wouldn't take place. we need to honestly have a conversation about how we keep the pressure on the military to continue these changes so that we have real change and we see the end of sexual assault in the military. >> i also wanted to complement that thought as well in terms of -- we are dealing with so many variables at once. the more solutions and ideas to throw at the problem without really giving it time to identify the affect of what we are already doing is just, i think, potentially complicating the issue. >> madam chair? one of the challenges for us is that this decision to not alter
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the convening authority's power isn't taking place on a stable playing field. all sorts of things are changing right before us that we actually have no idea what the impact is going to be on reporting rates or what the impact is going to be on the judge advocate general's or what the impact will be on conviction rates. we don't know what the special victims counsel program will be like in terms of ultimate justice or resource allocation. we don't know what the changes in the article 32 process -- that is a systemic change that is happening. we don't know what impact that will have. we don't understand how the emphasis on this specialized expertise to prosecute these complex cases that the military is developing and is transporting to the places where it is needed right now, we don't know if that is sustainable from a resource perspective. all these changes are happening. if we don't change this part of
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the system, then i deeply worry we are creating a system that is not only not better at doing what it has been doing, but will be much worse because commanders will pursue cases that aren't warranted. they will do what general brady said. commanders are supposed to have full control of the system. yet it is an independent and impartial justice system. i can't reconcile those concepts in my mind. we can't consider this outside of the larger context. i don't know what that proof would look like. we have this change in other military justice systems but they are not enough like our military to draw conclusions from it. no one collects the kind of data the united states does on this. we have more information. even the information we have here is terrible. we are talking about an iceberg we can see. if we don't have 75% of the reports of these incidents, , weh is our best guess
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don't know. until we know more about the problem, i don't think we can find evidence to support this kind of change. >> in response to the last comment, you are right. i don't know what that evidence would look like. in the military, one of the basic reasons to have the uniform code of military justice and have an embedded military justice system is the expeditionary nature. commanders in the military need to focus on fighting and winning wars. having a case be prolonged with witnesses and victims and the accused is not -- usually the cases are handled very quickly. it gets moved on. i am not saying they're always resolved appropriately. that is part of why we are here. as far as that evidence goes, if you put it into a queue -- how long does it take?
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even within the civilian sector. experience my own how quickly we have tried a murder case from beginning to end. within six months you have a conviction. i don't know if that is even possible in the civilian community. i would need to know more before taking a risk to change something and put it into a centralized area. i prefer not to see any more cases. think there is -- when you think about our military and , and theon responsibility of commanders which no one else in the world has to make decisions that impact the unit, to send people , and you tie good order
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and discipline into that process -- it does not work if there is not good order and discipline. commanders and retirees come in and tell us they think it could be moved but ofave -- the vast majority current and former commanders come in and say that is integral to the way we function as a military. it is so critical to our discipline which allows us to get at our ultimate mission. without knowing that it will make a difference, it is about having evidence. could supportw i a recommendation to change that.
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>> last fall we were discussing where itl a prototype wouldn't be service-wide but a designated air force base and a designated naval base, you know so on, would give this a try. then maybe we would get some of the facts and results and be able to look at this as a pilot program if you will. to see how it might play out across the services. as at ask whether or not subcommittee, you all might want to conserve that as a secondary recommendation, that this be given a try somewhere even if it is not all the services. i remember one of the army general said, we follow orders.
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we will do what we are required to do. it was in response to that proposal. as anthat out there alternative and a way to find out if this would work. it would have to be something that ran for more than 12 months for you to find it. in terms of connor hawke -- cook, maybe my contacts need changing. [laughter] . am embarrassed i have been with these people for months. why it would take longer to try the cases just because we change who the convening authority would be. wouldn't that say the same? maybe i missed your point. i don't know why that would change, the amount of time it would take to finish the case. jag officers are doing those
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cases. -- it if you have a team think you increase and centralize the number of cases. you have got to prioritize within that scheme. in a command right now, that case could be the most important thing on your plate. the judge is usually located within driving distance of your area. i get concerned that it gets lost in a number when it is all consolidated within a region. consolidated within the united states. even if you put it on a regional basis, it has to be advertised, located, and it won't have the same -- it is not the only case in town. that may be what you find at a particular installation. if you try it at a particular command, the number would still stay relatively low. i don't see that it might be
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different from what it is now when you do a prosecutor and the commander. the volume is not going to be the same. say, just hypothetically we pick fort bragg a. i think that is currently the army's largest base. lytic overthrow a couple of years. -- let it go there for a couple of years. the judges are there, the jags are there, the people are there. >> i will do far to the highest command. >> you have six different convening authorities and 50,000 active-duty soldiers there. you have a combined number of that prosecuted there exceeds all the rest of the cases in the united states army. said, iwhat holly has
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think it would be a concern. you would pull it away from all of those commanders over to one part of post and it would become like trying to get a medical appointment at the hospital. you are not getting that day after tomorrow. >> originally too i was open to the idea of a pilot project. i didn't come to this with an adverse approach to the proposal. i said, if everybody thinks this could be, let's try it out. i now reversed my view about that. i don't see any reason to do it. if you give me a reason to do it , i am ready to do it right now. where is the conflict of interest? i am not seeing it. i don't see it. it doesn't exist.
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if you show me the conflict of interest, i will say, that is very serious. --t because a commander don't ask me what that is, that is a pretty high level person. authority is not likely to know either one of the people. where is the conflict? that person, the commander, that convening authority has to resolve all kinds of conflicts. two people on the base get into a fight, not a criminal matter but they get into a dispute that has to be resolved. the commander has to decide all kinds of conflicts. drive the jeep today or who gets two jeeps? all those issues have to be resolved. show me the conflict of interest here.
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i haven't seen that. to make changes just for symbolic purposes, i thought mai said it very well. i think we need to be passed that. we need to be honest with the american people. what is really going on here and what is really going to make a difference? this is like a sample of bullet -- silver bullet. it hasn't solved a problem. no way it can solve the problem. they're all the other issues of victim services, quality of prosecution, how the rape statute itself which was rewritten several times -- maybe you understand what it means. there are a lot of other serious problems that have to be addressed. veterans administration, is a huge problem. these are things that will make
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a difference in people's lives in a concrete way. i like symbols. i am very interested in symbols. i am really interested in the concrete reality of what we can do that will affect people's lives. i am open. this commission has to the end of june or may? i am open to change my mind again about this. i would rather -- if you don't have the evidence that prompts ask the military to review it. that's move onto something where we can really, in a concretewaye improvements that will affect and qualitatively improve the prosecution of these cases. one other point i wanted to upress, the question came about, how can you get more prosecutions? because the me facts are the facts.
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he says ask, she says why. , she says y. i am a prosecutor, tough case to win. it is not a question of facts. it is a question of whether i put my win-loss ratio on the line. that is how a case can be brought or not brought. we don't want decisions made on that basis. factsa close case, the and the law justify the prosecution. we are willing to accept the possibility, the risk of diffie. some prosecutors may say, no, i don't want to. the question is, who is going to make those judgments? is it going to be someone -- i don't know who make those judgments. >> in terms of your last comment, i don't think we heard one commander who came and testified to this panel ever use
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the term of a conviction rate. those were lawyer terms. they look at the command climate. they may be more likely to send the case to court. in front of a panel or a military judge and let them have a day in court and figure out what comes out of the result. conviction rate is a lawyer's term. >> that could be a factor for a prosecutor in deciding whether or not to go forward with a case where is would not be necessarily for a commander. --you think you may not win it is still ethical and within the realm of the attorneys ethics to do so. the fact that you think the case may not be winnable doesn't mean it is unethical to send it to prosecution. >> you have to take a chance sometimes with prosecutions. prosecutors are sometimes accused of just wanting to shoot goldfish in a bowl. i really don't think that is true in the civilian world. i don't think it is true in the military.
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be assessed for whether or not you have a substantial likelihood of a conviction. just throwing a case out there and saying, is the government ready? when you know it is very unlikely you are going to get a conviction, it spoils the view of the system. no commander, no war fighters going to say, we are going to attack that hill. i don't think we have a chance of taking it, but we will teach them a lesson. i feel like we ought to at least give it a shot. i hope we are not conducting wars like that. i feel confident that we are not. aspect to therd conflict of interest, congressman holzman, that general brady brought up. helps tose to admiral grompt conflict -- two-pron
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conflict. that is bringing in these cases when perhaps they shouldn't be brought. that we are going to increase the prosecution rate. should only increase the prosecution rate if we have legitimate victims and legitimate evidence that has substantial likelihood of getting a conviction. that is contrary to everything i have seen and learned in practice. been mys never experience as a prosecutor that we look at things in terms of, do we have a substantial ability to get a conviction? we think about it, of course, but in a sexual assault case, if you find the victim credible, at least in my experience over the years, and believe, you already
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have probable cause, but believes the victim is telling the truth, you go forward. if you can, if you have the resources. the fact that you may not think a cases winnable is not a reason not to go forward. know -- i have to tell you that the last trial i had in my career was back in november. it was a rape case. we had a victim who did not speak good english, had to be translated from chinese. ,e had no dna, no fingerprints no sperm, no nothing. i took the case myself because i just believed that a jury would believe her testimony based on some of the other facts. we did get a conviction. three life sentences plus.
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i don't want to be misunderstood. i am not saying it has to be a slamdunk. we certainly try cases that are not slam dunks. when a prosecutor's and understanding of -- thereells him shouldn't be a conviction, there might be but there shouldn't be, in that case shouldn't be fought. that theery confident overwhelming number of cases out there, that military judge advocates are advising commanders on, that they are not treating these cases as jump balls. large department. just like civilian jurisdictions are large. you are not going to find the perfect record in any jurisdiction but it is not a
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norm within the united states the cases arehat being prosecuted this way. >> i was not suggesting that they were. i was suggesting that that becomes part of the conflict when we put such pressure on the convening authorities, the commanders to go forward. >> i think all we are saying is that we are not putting win in the equation. you are trying to decide if you have a victim who wants to go forward and who is credible. and you have not just a probable cause case, but those other two factors. and then you go forward. i am just saying, i think we are only talking about win here. >> i agree with you. all the lawyers on this panel and nonlawyers have heard the cliché, if you are not losing cases, you're not trying cases.
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you are going to lose your share of cases. everybody knows and understands that. >> may i respond? we have answered your question sufficiently. what is the conflict and if this is about perception rather than actually stopping the crimes, then why is it so important? those are reasonable questions. to me, the command control of the court-martial process is a great risk to the fairness of that process. the is -- that has consequences of failing to achieve high prosecution and conviction rates has never been higher. at commanding used to the term describe the atmosphere in which servicemembers work and live under the leadership of the command. there -- for- if
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instance, there could be many more reports that would go forward in a command climate that was changing. i could see pressure on a convening authority to i do not think that would be good for those victims. unrestricted reports that can be investigated and prosecuted, but the pressure to demonstrate progress on all of the metrics, that we want to know what is happening on the ground, creates a lot of pressure on convening authorities in charge of this process. it creates an even larger specter of unlawful command influence. it is a matter of perception. unlawful command influence is litigated all the time and lots of times and sexual assault cases. some ofhe

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